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Cross-Border Bankruptcy Issues
Nortel (two courts simultaneously trying allocation issues); Suntech, Barnet and subsequent bankruptcy court decisions on remand (recognition and § 109(a)); Fairfield Sentry Limited (sale of SIPA claims); enforcement of judgments (Argentina litigation, Madoff); filing of chapter 11 cases by foreign debtors (Alsacia); extraterritoriality issues regarding avoidance actions (Madoff decisions). Do Fairfield, Quimonda, and Madoff represent a retreat from the principle of comity set forth in chapter 15?
Bankruptcy Ethics Update
Discussion of EPF bankruptcy process issues. What are the duties of directors and their professionals in complex multi-debtor cases? More generally, when is it necessary to obtain a conflict waiver? Current vs. recent vs. former clients; directly adverse vs. positionally adverse; relatedness to a prior matter; use of confidential information; review of disinterestedness standards under Bankruptcy Code § 101(14) and related disclosure requirements; ABI Report on Standards of Professional Courtesy and Conduct.
“Governed by New York Law”? Considering the Impact of New York State Law in Bankruptcy Matters
Major cases filed in New York may follow that state’s laws because of the location of the forum, contractual designation or some other reason. But New York law on debtors/creditors, fraudulent transfer, partnership and other areas may be out of date or may depart from the laws of other jurisdictions. Discussion of New York State law issues and recent cases certified to the New York State Court of Appeals, including rent-controlled leaseholds as property rights.
Fiduciary Duties from Ordinary Course, into Distress and Insolvency, and through Bankruptcy
Do directors’ duties or decision processes change when the company’s conditions worsen? Is there still any implication to a “zone of insolvency”? How do directors’ duties change in bankruptcy? What duties are there to secured and unsecured creditors? Are there duties to controlled affiliates or their constituencies? Are there process protections? Quadrant (Delaware decision on board action).
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